HEALTH POLICY INITIATIVE Assessment of the HIV Legal Environment: Yunnan, China October 13–30, 2008 This publication was produced for review by the United States Agency for International Development. It was prepared by RTI International. USAID | Health Policy Initiative Assessment of the HIV Legal Environment: Yunnan, China October 13–30, 2008 Contract No: GPO-I-00-05-00035-00 Prepared for: Nithya Mani, CTO, HPI United States Agency for International Development Prepared by: RTI International Contact: Felicity Young, Chief Of Party Room C, 18th Floor, Xinhua Plaza 6 Renmin Dong, Road Kunming Yunnan 650051 China RTI International is one of the world’s leading research institutes, dedicated to improving the human condition by turning knowledge into practice. 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Acknowledgments This report has been prepared by Mr. David Patterson (independent consultant) and Mr. Jia Ping (independent consultant) with technical inputs from Mr. Hu Bin (Health Policy Initiative/Greater Mekong Region–China).Thanks to USAID for funding the investigation, and thanks to those individuals and organizations listed in the Appendix for their contribution. Table of Contents Acronyms and Abbreviations .....................................................................................................i Introduction................................................................................................................................1 Findings and Observations.........................................................................................................1 Overview of the Most Important HIV-Related Laws and Regulations That Apply in Yunnan........................................................................................................................4 National Level........................................................................................................................5 Public health.......................................................................................................................5 Treatment ...........................................................................................................................8 Sex Work ...........................................................................................................................8 Drug Use ............................................................................................................................9 MSM and “Hooliganism” ................................................................................................10 Discrimination..................................................................................................................10 Yunnan Provincial Level .....................................................................................................10 Appendix 1: People Contacted throughout the Review........................................................ A-1 Acronyms and Abbreviations ADR Alternative Dispute Resolution AIDS acquired immune deficiency syndrome AQSIQ Administration of Quality Supervision, Inspection, and Quarantine APCASO Asia and Pacific Council of AIDS Services Organizations ARV antiretroviral CDC Yunnan Center for Disease Control GMR-C Greater Mekong Region and China HBV hepatitis B HIV human immunodeficiency virus HPI Health Policy Initiative IDLO International Development Law Organization IDU injecting drug user MMT methadone maintenance therapy MOE Ministry of Education MOFCOM Ministry of Commerce MOH Ministry of Health MSM men who have sex with men NPC National People’s Congress NSP needle syringe program PLHIV people/person living with HIV PPCC National Population Planning and Control Committee PSB Public Security Bureau SCAWCO State Council AIDS Working Committee Office STD sexually transmitted diseases SW sex worker USAID U.S. Agency for International Development USAID | Health Policy Initiative IQC Legal Assessment Report—Yunnan, China. Submitted by RTI International i Introduction Health Policy Initiative/Greater Mekong Region and China (HPI/GMR-C) has worked in Yunnan since February 2008 to strengthen the policy response to HIV and AIDS. Provincial partners include the Yunnan Provincial AIDS Bureau and the Yunnan Center for Disease Control (CDC). In 2009–2010, HPI/GMR-C will broaden its work to strengthen the legal environment in Yunnan. In October 2008, two legal consultants (Mr. David Patterson of Canada and Mr. Jia Ping of Beijing, China) visited Yunnan and collected information from key stakeholders to make recommendations for HIV law programming over the next two years. The first part of this report provides the findings from the mission. The second part provides an overview of the laws and regulations relating to HIV and AIDS in Yunnan. Thanks are due to the people who were interviewed for providing their time and insights to the researchers. However, the information and views expressed in this report are the responsibility of the researchers and do not necessarily reflect the views of HPI/GMR-C or of any of the persons interviewed. Findings and Observations A) The HIV-related policy and legal framework in China and particularly in Yunnan has evolved in recent years to be more consistent with international law and best practice. However the implementation of this framework, particularly to prohibit discrimination against people living with HIV (PLHIV), remains challenging at both the central and provincial levels. Key reforms at the central level, such as the 2006 State Council Regulations on AIDS Prevention and Control and the 2007 Narcotics Control Act, reflect international best practice in many aspects. Similarly, the 2006 Yunnan Provincial AIDS Control and Prevention Regulations also reflect international best practice in some areas, such as the prohibition of discrimination against PLHIV. However, discrimination against PLHIV still persists in many aspects of daily life. Reasons include ignorance of the law, lack of understanding of HIV epidemiology (i.e., unreasonable fears of HIV infection), moral judgments about commercial sex and drug use, and so-called customer preference arguments by employers. (“Customer preference” is sometimes given as a reason for discrimination by employers in the service sector [e.g., restaurants] who fear that they will lose business if they employ PLHIV.) It appears that the law has done little to reduce HIV-related discrimination in Yunnan. There have been no court decisions on HIV discrimination, possibly because PLHIV are unwilling to disclose their identity though court action. To protect the identity of vulnerable clients, lawyers can request the court to allow a pseudonym to be used. Lawyers can also request a court order to prohibit disclosure of the names of HIV-positive litigants by the media. These techniques have been used in other countries and could be used in Yunnan. USAID | Health Policy Initiative IQC Legal Assessment Report—Yunnan, China. Submitted by RTI International 1 B) Conflicts still exist between (i)Laws, policies, and practices intended to reduce the spread of HIV infection and other health and social harms associated with HIV infection and AIDS, and (ii)Laws, policies, and practices intended to eliminate drug use and sex work, and maintain public order (sometimes used against men who have sex with men [MSM]). Informants working with injecting drug users (IDUs) noted that Public Security Bureau (PSB) practices sometimes undermine public health interventions such as methadone maintenance therapy (MMT) and needle and syringe programs (NSP). It was reported that PSB officers sometimes require random urine samples to detect illegal drug use from persons attending MMT clinics or NSP outreach services. If a positive result is found, the person may be immediately detained in a compulsory detoxification center (where MMT is not available.) This can deter clients from attending MMT and NSP services and increases the likelihood that they will revert to heroin use and share injection equipment. Representatives of groups working with MSM noted that clients have complained of police harassment in public places and discrimination at work if their sexuality is disclosed. Although the informants did not identify the direct link between increased self- esteem and safer sexual practices, this link has been made in other countries. Improved self-esteem is an important component of behavior change in this group. The law has a limited but important role to play in addressing harassment and discrimination. Persons working in the legal system need information about the public health approach to HIV infection in Yunnan. Joint protocols can be developed on how the PSB and the Public Health Bureau (PHB) will cooperate regarding MMT and NSP sites, condom outreach services, and other interventions. C) Court action can also be useful in establishing precedents